Dismissal on objective grounds

Dismissal on objective grounds has become one of the most controversial points of the Labour Reform carried out by the Spanish Government in 2012. In fact, it has given rise to certain abuses by companies and the filing of a multitude of appeals by workers. It is typified in article 52 of the Workers' Statute and here we want to talk about it in depth.

Definition of dismissal on objective grounds

Article 52 of the Workers' Statute, which is found under the heading 'Termination of contract for objective causes', specifies that this is a model of dismissal that is carried out directly for reasons that concern, in the first place, the worker himself. These are:

• Lack of adaptation of the employee to his job due to unavoidable technical changes for its development.
• Supervening or known ineptitude of the employee.
• Absenteeism equivalent to 25 % of the total number of working days in 4 discontinuous months in a year or 20 % for 2 consecutive months provided that the absenteeism rate in the workplace is higher than 2.5 %.

However, this article of the Workers' Statute also contemplates as objective causes reasons intrinsically linked to the company. These are detailed in article 51 of this legal text and are:

• Economic reasons: the company must show that it is making losses or expects to make losses within a short period of time. It can also be used as a reason for dismissal if it considers that its ordinary income from sales or services will be reduced for three consecutive months.
• Technical reasons: when there are changes in the instruments or means of production that require a change of personnel. Organisational causes: if changes in the way the company's production is organised are necessary in order to make the company viable in the medium and long term.
• Productive causes: if there are important changes in the demand for services and products that the company plans to bring to the market.

Requirements for the validity of dismissal on objective grounds

As a measure of protection for the worker, the Labour Reform provides for these requirements for dismissal on objective grounds:

• Written communication to the employee by the company specifying the exact objective cause for dismissal. This must be delivered at least 15 days prior to the date on which the employment relationship between the employee and his or her employer will end.
• Payment of a compensation equivalent to 20 days per year worked with a maximum amount of 12 monthly payments.

The employee, from the moment the dismissal becomes effective, will have a period of 20 working days to contest it if he/she considers that the alleged causes are not objective. To do so, it is necessary:

• File the conciliation form at the labour court corresponding to the dismissed worker's place of residence.
• Go to the mediation, preferably accompanied by a lawyer. This is not legally necessary, but it is highly recommended, as it is normal for the company to go with one.
• If there is an agreement, it will be signed and put into practice. If not, it will be necessary to go to court and wait for the court ruling. In this process, it is necessary for the worker to hire a lawyer and a solicitor.

The trial will lead to the publication of a judgement determining that:

• The dismissal is fair, i.e. it has indeed been motivated by objective causes: the worker will bear the costs and will not receive anything beyond what he/she was legally entitled to at the time.
• The dismissal is null and void: for this, the judge must consider that there have been discriminatory causes or that the process has not been followed properly. In this case, the worker must be reinstated in his or her position and receive the relevant wages for processing.
• The dismissal is unfair: the worker will be entitled to compensation of a maximum of 33 days per year worked (45 days for the period prior to February 2012) and 24 monthly payments.

A special case: dismissal with reduced working hours

The Supreme Court's ruling of 11 January 2018 addressed the controversy related to dismissal with reduced working hours on objective grounds.

In it, the highest legal body in our country corrected the judgment of the High Court of Justice of Madrid that had declared the dismissal of a worker while enjoying a reduction in working hours for legal guardianship of his daughter as unjustified. In this case, the Supreme Court determined that the most appropriate consideration was that of null and void dismissal.

To this end, it considers that the protection of nullity is given at the very moment in which the worker requests the reduction in working hours. This is due to the fact that, as in the case that motivates this ruling, on many occasions companies do not give a formal response to their workers, but they do apply the corresponding measures so that they can enjoy the advantages of this working condition in practice.

Moreover, it would only be considered unfair dismissal if the termination of the employment relationship was carried out in retaliation for the worker's request for a reduced working day.
Therefore, and taking into account the analysis in that ruling, it is not possible to dismiss an employee on a reduced working day for objective reasons. Depending on the case, such dismissal will be considered unfair or null and void.

Conclusions on dismissal on objective grounds

In short, from the time of its publication in February 2012, dismissal on objective grounds has been one of the most controversial points of the Labour Reform of the Workers' Statute and one of those that trade unions and other workers' representatives have most often wanted to eliminate.

Taking into account the ambiguity of the article that regulates it and the number of lawsuits and claims that have taken place in recent years, it is not surprising. In fact, analysing in detail the outcome of the judgments, it is not unreasonable to say that under this formula a good number of abuses by companies towards their workers have been tried to be carried out, with greater or lesser success.

So, if you find yourself in the situation of having been dismissed for objective causes, the best thing to do is to get in the hands of a lawyer specialised in labour law and let him advise you.